Experts skeptical of lawsuit in Minnesota governor’s race

Law professor says Emmer has no grounds

MINNEAPOLIS – With even some Minnesota Republicans doubting they can win the governor’s race by recount, the central question of the unsettled election could soon become whether the GOP can sue its way to victory.

For now, election law experts say that’s unlikely.

Party Chairman Tony Sutton vowed to “turn over every stone” to help Tom Emmer make up the nearly 9,000 votes by which he trails Democrat Mark Dayton. The GOP has already put out the call for activists or poll monitors to report any problems they saw with voter registrations, machine jams or other “irregularities.”

Minnesota went down this road in 2008, when then-Sen. Norm Coleman challenged the recount he lost to Democrat Al Franken. Coleman had legitimate legal grounds, particularly over the counting of absentee ballots.

It’s not clear yet if Emmer would.

“The legal argument has to depend on the facts on the ground, and you have to have something to hang your hat on. It might be thin, but it has to be something,” Duke University law professor Guy-Uriel Charles said.

Edward Foley, a law professor at Ohio State University, said he hasn’t seen anything yet that would give sufficient legal grounds for an Emmer lawsuit to succeed.

“There would need to be problems in the voting process that are violations of the law that could make a difference in the outcome,” Foley said.

Foley said the court decisions in the Coleman-Franken contest, as well as changes enacted by the Legislature to eliminate some subjectivity in whether to count absentee ballots, narrowed the kinds of issues Emmer could raise in any lawsuit.

Republicans complained vehemently about an error in vote totals Tuesday night from Hennepin County, the state’s most populous, that inflated Dayton’s lead temporarily by more than 60,000 votes. Hennepin election officials said it was a manual error by a worker entering data and they’re confident their final totals will be proven accurate.

A recount would come before any election lawsuit. It will be automatic unless Dayton’s lead has widened to more than half a percentage point by the time the State Canvassing Board certifies the unofficial vote totals Nov. 23.

If a re-count is called for, the secretary of state’s timeline sets Dec. 14 as the date to certify its results.

The new governor is scheduled to be sworn in Jan. 3. If either Emmer or Dayton challenge the recount result in court, Republican Gov. Tim Pawlenty would stay in office until the legal fight is resolved.

That raises the possibility that Pawlenty could team with new GOP majorities in the Minnesota House and Senate to enact legislation before Dayton could take office and veto it.

If Republicans wish to draw out the process for strategic reasons, money is unlikely to be an issue. State law leaves open the door to almost unlimited contributions, with minimal disclosure requirements.

Coleman and Franken combined to spend around $14 million on their postelection fight, while various party organizations chipped in more than $3.5 million in additional help.

Gary Goldsmith, executive director of the Minnesota Campaign Finance and Public Disclosure Board, confirmed that a re-count fund may be established separate from a candidate’s campaign committee or board-registered party units that would not be governed by the state’s registration and reporting requirements.